Civil Procedure & Federal Courts Blog

SCOTUS Cert Grant on Intervention

Today the Supreme Court granted certiorari in Arizona v. San Francisco. The case involves the Trump administration’s regulations on the “public charge” provision of the Immigration & Nationality Act.

The grant is limited to Question 1 of the petition, which involves Arizona’s and other states’ attempt to intervene in litigation challenging the regulations: “Whether States with interests should be permitted to intervene to defend a rule when the United States ceases to defend.”

You can find the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

 

SCOTUS Grants Cert in Texas Abortion Cases

Today the Supreme Court granted certiorari in two cases relating to the Texas abortion law, S.B. 8 (covered earlier here and here).

One case, Whole Woman’s Health v. Jackson, presents the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

In United States v. Texas, the grant is limited to the following question: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?”

The Court has set an exceptionally expedited schedule, with oral argument occurring on Monday, November 1. However, the Court has left the statute in effect while it considers the case.

Here is the order granting cert in Whole Woman’s Health. Here is the order granting cert in United States v. Texas, which is accompanied by a partial dissent from Justice Sotomayor.

 

 

 

 

Mullenix on Norris on Neoliberal Civil Procedure

Today on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory. Linda reviews Luke Norris’s article, Neoliberal Civil Procedure, 12 U.C. Irvine L. Rev. (forthcoming 2022).

 

 

Federal Judge Enjoins Texas Abortion Law

The judicial saga surrounding Texas’s S.B. 8 continued today with a 113-page order from U.S. District Judge Robert Pitman, which concluded with the following preliminary injunction:

IT IS ORDERED that the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§ 171.201–.212. For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§ 171.201–.212.

In addition:

IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts. IT IS FURTHER ORDERED that the State of Texas shall inform all state court judges and state court clerks of this preliminary injunction and distribute this preliminary injunction to all state court judges and state court clerks.

 

Download United States v. Texas (WD Tex Oct 6 2021)

 

 

 

Vladeck on Siegel on Habeas

Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Hiding Behind Habeas’s Hardness. Steve reviews Jonathan Siegel’s recent article, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. (forthcoming 2022).

 

 

 

New SCOTUS Cert Grants: Boechler & Cassirer

Yesterday the Supreme Court granted certiorari in several cases—two of which may be of particular interest…

Boechler, P.C. v. Commissioner of Internal Revenue presents the following question:

Section 6330(d)(1) of the Internal Revenue Code establishes a 30-day time limit to file a petition for review in the Tax Court of a notice of determination from the Commissioner of Internal Revenue. 26 U.S.C. § 6330(d)(1). The question presented is: Whether the time limit in Section 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.

You can find the Boechler cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

Cassirer v. Thyssen-Bornemisza Collection Foundation presents the following question:

The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611 (“FSIA”), provides that where a foreign nation is not immune from jurisdiction in the courts of the United States or of any State, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Id. § 1606. In four circuits, the courts of appeals have held that this statutory requirement of parity with private litigation means that a federal court hearing an FSIA case must apply the choice-of-law rules of the State in which it is sitting. But the Ninth Circuit has held—repeatedly and without meaningful analysis, including in the decision below—that choice of law in FSIA cases is determined by application of federal common law.

The choice of law issue is critical in this case, in which the family of a Holocaust survivor seeks the return of a painting stolen by the Nazis. Under California law, a holder of stolen property (such as the Spanish state museum here) can never acquire good title, while under Spanish law, an adverse possession rule protects the museum’s title.

The question presented is: Whether a federal court hearing state law claims brought under the FSIA must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

You can find the Cassirer cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.